Overturning the court’s precedents that race can be one factor of many in making admission decisions would have “profound consequences” for “the nation that we are and the nation that we aspire to be,” Solicitor General Elizabeth. B. Prelogar told the justices during arguments in the Harvard case. She said educating a diverse group of national leaders had consequences for the military, medical and scientific communities and corporate America.
But the court’s conservatives took the two cases to revisit decades of Supreme Court decisions that tolerated a limited use of racial classifications, and seemed unsatisfied with assertions from lawyers representing the schools that the end was near for the use of race-conscious policies. Under repeated questioning, those lawyers conceded they could not provide a date-specific answer to the question: “When will it end?”
Patrick Strawbridge, the lawyer representing Students for Fair Admissions, the group that brought both challenges, argued that the Supreme Court had rejected racial classifications in marriage, jury selection and assignment of children to elementary schools.
By allowing it in college admissions, “Some applicants are incentivized to conceal their race,” Strawbridge said in the UNC case. “Others who were admitted on merit have their accomplishments diminished by assumptions that their race played a role in their admission. And there is no evidence that after two decades [the court’s precedent] has somehow reduced the role of race on campus.”
Since the 1970s, the Supreme Court has said that race may be used as one factor universities can consider in evaluating applicants for admission. Universities say there is a continuing need for affirmative action to build diverse student bodies, which they say strengthen the overall learning environment with distinct perspectives and experiences.
Harvard and UNC describe as “holistic” the process the universities use to review applicants. If schools are not permitted to use race, these universities say, enrollment by minorities will decline dramatically.
Challengers want the court to overturn long-standing precedent and rule that considerations of race violate federal law and the Constitution. Edward Blum, president of Students for Fair Admissions, said universities put too much weight on race and that the nation cannot remedy past discrimination with racial preferences, which he considers a different form of discrimination.
In the Harvard case, the charge is that the school’s policy discriminates against Asian Americans. UNC, the group said, gave unfair advantages to Black and Hispanic applicants. In each case, the universities denied wrongdoing. Lower courts said their practices followed Supreme Court precedent.
By the end of Monday’s contentious arguments, Prelogar and the lawyer for Harvard urged the justices to send the cases back if they had doubt about how closely the processes were scrutinized, rather than overturn the court’s precedents.
A majority of Americans support a ban on race-conscious admissions policies, according to a recent Washington Post-Schar School poll, but an equally strong number back programs to boost racial diversity on college campuses.
In 2003 and again in 2016, the court upheld the limited use of race in admissions and said that the educational benefits of a diverse student body justify some intrusion on the Constitution’s guarantee of equal protection, which generally forbids the government from making decisions based on race.
But only one justice in the four-member majority in the 2016 case involving the University of Texas is still on the court; three Trump nominees have solidified a conservative 6-3 majority. There is disagreement among the justices about whether the equal protection clause of the 14th Amendment means the Constitution must be colorblind.
Challengers say that under the equal protection clause, government-run universities like UNC cannot use race as a factor in admissions’ decisions. Harvard is not subject to that constitutional clause, but must adhere to Title VI of the Civil Rights Act of 1964. That statute prohibits racial discrimination, exclusion or denial of benefits under “any program or activity receiving Federal financial assistance.”
Harvard, a private institution, is subject to Title VI because it receives millions in federal grants and enrolls students who pay in part with federal financial aid. UNC, a public university, is covered by both the Constitution and Title VI, which incorporates equal protection standards after Title VI.
The cases are Students for Fair Admissions v. University of North Carolina, and Students for Fair Admissions v. President and Fellows of Harvard College.
This is a developing story. It will be updated.